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A person who had read my recent essay on Lingle v. Chevron asked me whether I thought Lingle would have an impact on how Eastern Enterprises v. Apfel should be interpreted going forward. For those unfamiliar with Eastern Enterprises, a four-member plurality of the Court (O'Connor, Rehnquist, Scalia and Thomas) held that a retroactive imposition of liability on a coal company for the healthcare costs of former employees amounted to an unconstitutional taking. Justice Kennedy concurred in the judgment on the ground that the act violated substantive due process, but dissented on the takings issue.

I've never really been sure what to make of the Eastern Enterprises plurality, and unfortunately Lingle may not have clarified things much. Justice O'Connor's analysis in Eastern Enterprises certainly seems much more related to substantive due process than to other regulatory takings cases, and I think that Justice Kennedy's concurrence/dissent in Eastern Enterprises is convincing on that point. So on one level, the recognition in Lingle that the Court's regulatory takings cases have improperly incorporated elements of substantive due process analysis could be used to discount the continued significance of the Eastern Enterprises plurality opinion. On the other hand, the Court's language in Lingle that the takings test is concerned with the burden imposed on the property owner can be seen as consistent with the Eastern Enterprises approach. My own preference would be to have retroactive and disproportionate impositions of liability reviewed under a substantive due process standard that has a bit more bite than the typical rational basis level of review. I suspect that Justice Kennedy would agree with this approach. His brief concurrence in Lingle, which references Eastern Enterprises, continues to use "arbitrary or irrational" language. But in substance I think his approach, at least in this context, is less deferential than that typically applied in economic substantive due process cases.

I'd certainly welcome the thoughts of other takings geeks on this issue. (Of course, I'd welcome anyone's thoughts on this, but you have to be a takings geek to care much about Eastern Enterprises).

Ben Barros

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